X: Reconciling Strategy and Just War Norms

X: Reconciling Strategy and Just War Norms

by

Howard Adelman

Some military strategies are much more compatible with international just war norms than others. Some are totally incompatible. Thus, in Iraq and Afghanistan, an application of strategy that makes the battle for the hearts and minds of a population rather than one which regards the whole population as potential enemies is almost bound to be more sensitive to just war norms, at least for the dominant power. However, even a war based on the belief that the enemy population must itself be demoralized and force must be used to destroy support for its leadership, but which purports to follow just war norms, is not a strategy of “total war” in which a dominant power simply blasts a civilian population to smithereens. The latter is totally incompatible with the application of just war norms.

An insurrectionary military group, such as ISIS, the Islamic State of Iraq and al-Sham (to be distinguished from the ancient Egyptian goddess, Isis), or ISIL (the Islamic State of Iraq and the Levant) is not the same as Hamas. When Ramadan began, Abu Muhammad al-Adnani announced that henceforth the ISIS leader, Abu Bakr al-Baghdadi, would be known as the caliph and ISIS itself would be just the Islamic State. The Islamic State, which fights by directly exterminating civilian populations of those it regards as heretics, is not to be equated with Hamas or the Muslim Brotherhood. Hamas is not an advocate of “total war” from an insurrectionist perspective. Yet it is quite willing to reign rockets on the civilian population of Israel, but does not advocate the extermination of Israelis as heretics. The Hamas military arm is not even made up of Jihadists even though Hamas and Islamic Jihad often collaborated in the war against Israel.

But Hamas may be more dangerous than ISIS when the hearts and minds of Westerners enter the equation. After all, Hamas won in a fair election and has a degree of political legitimacy. Though Hamas has murdered alleged collaborators and even Fatah lackeys when Hamas first took power, it has not targeted uninvolved civilians for slaughter. ISIS cannot even get along with other terror groups like al-Qaeda or the al-Qaeda-affiliated Al-Nusra Front. In contrast, Hamas has agreed to enter a coalition government with the Palestinian Authority without even getting any cabinet posts.

Whereas ISIS is fighting a bloody media war to gain recruits and conquer more territory and economic assets to become self-sustaining, the Hamas media war is aimed at the hearts and minds of Europeans and Arab states to gain support and help escape its economic isolation and its severely restricted geographical area. Hamas is an economic basket case with its society largely funded by external, including Western, donors, not an economically rich terrorist machine expanding its territory and sources of economic exploitation. Hamas is fighting a media war to win the hearts and minds of Europeans. Hamas has been able, in part, to rule for seven years because of Western “humanitarian” aid and Western human rights protesters opposed to the blockade, at least the blockade imposed by Israel.

The difference between the two organizations is best illustrated by the UN political attacks against Israel for firing rockets in its own self-defence against Hamas and Gaza while the UN largely silently cheers when a country like the US, which is not directly threatened by ISIS, uses drones and Western fighter jets to shoot up trucks loaded with armed jihadists as they cross the desert of Iraq. The UN even pays for the education of almost half the citizens of Gaza, openly criticizes Israel, and acts as an apologist for Hamas even though its schools are used not only to house refugees but to store rockets.

The most common thread connecting Hamas and ISIS is not the Muslim religion (which is so variable in the interpretations of its texts), but the reliance of each organization on the twin legs of militancy and martyrdom. Both are used to restore and enhance each organization’s popularity. Both are children of the modern age of communications. ISIS may broadcast its beheadings and Hamas may hide its kangaroo justice, but the reason in each case is the same – to selectively use different types of militancy to defend and advance their respective positions in the Muslim and then the larger world.

The most significant difference is that Hamas is embedded in a dense civilian population; ISIS is not. The main strike force used by Hamas was not its rockets but its military units on the ground who fought soldiers of the IDF. However, the question in whether they used “human shields”, that is embedded themselves so deeply in the civilian population and in such various ways that it became very difficult if not impossible for their enemies to fight them without killing civilians either in total error, as when significant numbers of civilians were in a location where there were no militants nearby and Israel could not offer a strategic reason for targeting that locale, or because a belligerent was close by without the knowledge of the Gaza civilians and sometimes without the IDF knowing that civilians were close by. However, sometimes civilians were coerced or induced or even cooperated to host militants, in which case is the civilian complicit and therefore subject to being attacked by the IDF? In each of these different cases, the ethical criticism of Israel would be quite different as would be the application of the norms by which the action is judged.

In the case of the air war, the rockets and mortars shot off by Hamas had no guidance systems so could not be used unless civilian targets were acceptable. Even if Hamas wanted to discriminate between Israeli civilians and military units, it was unable to do so without totally disabling its storehouse of rockets. If the types of weapons available to fight an air war are such that they, by their very nature, cannot discriminate between civilians and militants, does that make what Hamas does automatically a war crime. However, if, in actual practice, those rockets and mortars kill and maim relatively few civilians, if, in fact, one application of just war theory would lead to the total immobilization of Hamas’ air weapons – its rockets and mortars – does the imperative of Hamas to use the weapons trump concerns about discriminating between civilian and military targets? The very fact that we can ask this question means that Hamas is not outside the bounds of international humanitarian law and is accountable under that law. Hamas, to repeat, is not an extremist warrior jihadist group indifferent to moral and legal norms.

Both the Israeli government and Hamas fought a war in which each side was governed by just war norms. Both sides targeted civilian buildings, but there seemed to be no intention on either side of using its military hardware and firepower to wantonly kill civilians on the other side in spite of what Israel has said about Hamas or what Hamas has claimed about Israel. As Benny Morris described with respect to the latter, Israel demonstrated “no willingness to exact a heavy price in blood from the enemy’s civilians.” Nevertheless, Israel was willing to tolerate more collateral damage to civilian targets and to civilians than would otherwise have been the case if Israel had adopted a strategy of trying to win the hearts and minds of Gazans. Hamas was willing to adopt military weapons that landed on civilian targets and maimed and wounded civilians on the ground when faced with the alternative of being almost totally defanged

The problem of applying just war norms in an impartial and detached manner is much more difficult when a war strategy includes civilian demoralization as part of its strategy versus a war that tries to win over a population and alienate it from its leaders. Nevertheless, unless a more forceful response was the dominant strategy, it is unlikely we would be concerned very much about just war norms. For the norms of discrimination between civilians and militants and the principles of proportionality would be much more scrupulously followed.

This means that, in the Gaza War, just war norms can be applied since there is no a priori way of condemning either side. On the other hand, on each side there are bound to be cases where it is crucial to look into whether the norms of discrimination between civilians and militants and of proportionality were attended to properly in the conduct of the war.  However, it is first necessary to understand whether the war was just in the first place.

In the case of Israel, the answer is fairly easy — unless one already has a built-in prejudice in one’s approach to the Zionist state. The 2014 Gaza War was clearly and unequivocally a war of national defence against a party reigning rockets down on its civilian population. This is true even if Israel might have provoked the war by rounding up Hamas operatives in the West Bank after the killing of three teenage Yeshiva boys by Hamas operatives, either as a rogue operation or one under the direct control of Hamas. What makes the Hamas position problematic is that its ultimate aim is to exterminate Zionism and destroy the product of the self-determination of the Jewish people. If Olmert had not imposed a blockade when Hamas came to power, the aggressive intent of Hamas would have been clearer. But Israel would have won a moral battle in international eyes but at the cost of a much stronger, better armed and more militant Hamas. Israel is unwilling to bet on Hamas becoming moderate in order to legitimate itself when, if Israel loses the bet, its very existence is put at risk.

Nevertheless, the existential threat to Israel does not permit Israel to engage in total war against the civilian population of Gaza. And it does not do so and has not done so. But Israel has chosen to ignore the hearts and minds of Gazans and to win each battle by diminishing its military capacity and enhancing the fear of Israeli reprisals. As a result of adopting such an approach, Israel is more tolerant of collateral damage than it would be otherwise, and many more civilians in Gaza were maimed and killed than if the alternative strategy were adopted. But unless one is a Rousseauian purist with human rights trumping everything, just war norms are not there to determine strategy but to determine whether the execution of that strategy falls within just war norms.

In some cases, the implementation of the strategy may not have conformed with just war standards. In general, Israel clearly went out of its way to spare the lives of civilians, once the caveat is accepted that it adopted a more militant strategy than an opposing strategy which would have encouraged more attention and consideration of just war norms. This does not mean Israel in its militancy abused just war norms. There may indeed be instances where Israel was careless or indifferent to the civilian collateral damage. That has to be ascertained by gathering case-by-case evidence and cannot be accomplished by a priori begging the question.  

Hamas has to be judged by the same norms and within the context of the strategy it chose to adopt. It could have, and I think it should have, adopted the path of peace that Fatah eventually adopted to seek a resolution of the Palestinian-Israeli conflict. But the strategy it did adopt neither put it outside the application of just war norms nor allows independent judges to determine in advance that Hamas was guilty of criminal activity. Given the choices it faced and the military means at hand, could the killing of civilians be seen as collateral damage? However, if Hamas can be shown to have been complicit in the killing of the three Yeshiva students, that was a criminal act and should be seen as such. So probably was the kangaroo justice meted out to alleged collaborators. But given the context, the fact that either side chose to deal with the situation by a more militant strategy than I personally saw as imprudent and unnecessary does not mean either side broke the norms of just war.

I recognize that I am interpreting the application of just war norms from a contextual or Grotian perspective and not an absolutist Kantian perspective that makes human rights the absolute ruler in applying international norms to the exclusion of any real genuine concern with military strategy. The Kantian or deontological approach has become the reigning doctrine in human rights organizations and for international legal experts and philosophers, but it is not the dominant outlook for teaching the application of just war norms in military colleges. For obvious reasons. Military colleges are there to teach people how to win wars and to do so with sensitivity and consideration of just war norms. They are not there to prevent armies from adopting strategies and methods which might lead them to lose.

On a personal note, it is relatively easy to combat the realists who would totally ignore and subvert just war norms, and the moralists who also subvert just war norms by trying to use them to rule out war but in the end merely support the weaker party in a conflict and, thereby, indirectly contribute to the civilian death toll. What is really difficult is trying to uphold just war norms in the face of more militant strategies, whether employed by the Israeli government or by Hamas, but applying those norms in as impartial and objective way as possible.

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